I wrote here about my attendance at the Convention on Modern Liberty’s satellite in Glasgow.
The consensus that emerged from the day was that there needed to be a permanent, fundamental contract between the State and those to whom it owes a duty of care. I’ll explain that last bit in a moment. The problem with the current constitutional settlement in the UK is that it is mutable and subject to fundamental alteration at the whim of an executive which is not sufficiently restrained by the legislature, simply because it is the largest party in the legislature which becomes the executive and therefore can have its own way, even with the most fundamental interests and freedoms of society. There is only one way to address this gaping flaw in the UK’s constitutional arrangements, and that is for there to be a written constitution and a separation of powers between the Legislature, the Executive and the Judiciary. Some small steps have been made on the latter path, with the separation of the legislature and the judiciary in the formation of a Supreme Court separate from the House of Lords sitting as the court of last instance, but this is a development which has not come from within, but from external pressure. In consequence we now have a Ministry of Justice, which always sounds to me like something of which every banana republic should be proud. It is clear that the British state cannot of itself and for itself derive a new constitutional arrangement; we, the people, must do that task ourselves.
Chris Huhne, the Liberal Democrat spokesman on Home Affairs, said at the second London plenary session, “we must have a Parliament that is independent of the executive and is able to hold it to account”.
In the discussions at the London convention, it was clear that this was the broad consensus of the meeting, and one, to my mind, which was supported at the Glasgow satellite. There was a mood at the Convention that this should be an annual event until such time as this objective was secured and that the Convention should seek to establish the mechanisms by which a new constitution for these islands could be determined.
To come back to my point about “those to whom the state owes a duty of care”. There was strong agreement amongst all who spoke that human rights are indivisible. They are not “British rights” or “citizens’ rights”, because it is all too easy to redefine who is or is not “British” or a “citizen” and therefore protected or otherwise by right. For that reason, repealing the Human Rights Act and replacing it with a British Rights Act or something equally ghastly immediately gives the state the power to derive people of rights – those of the wrong political inclinations (“sorry, old boy, not quite British enough“), of the wrong immigration status (“sorry, old chap, you’re not a citizen, you know“), of being on the wrong end of a British gun (“sorry, old bean, you’re just an enemy combatant“).
I propose that the test of those to whom we should extend rights is quite simply the one of the duty of care. And to answer this question, we have a snail in a bottle of ginger beer to thank. In the 1932 case of Donoghue v. Stevenson [1932] HC 562, the learned judge Lord Atkin said:
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour: and the lawyers question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the act or omissions which are called in question.”
It is clear here that we can regard any constitutional arrangement that adheres to these principles as being sound, robust and founded in indivisible human rights. It would make it absolutely clear that there were no territorial limits to the oversight of the legislature or judiciary in terms of the actions of the executive. We can contrast here the legal lacuna which permitted George W Bush to establish on his personal authority a global regime of internment, illegal rendition and torture in which the British government were able – and pleased – to collude. Such a principle enshrined in a British constitution would protect anyone, anywhere in the world, whatever their status, from the actions of a British Executive and improve on the, admittedly, laudable American model.
